The law at WORK.

Employment and Labor Law – The Knowledge Your Boss Hoped You Would Never Have.

The number of teenagers in the workplace has grown dramatically. However, one of the saddest things related to the large number of teenagers in the workplace is that most of them have very little understanding of their rights when they are on the job. One of the reasons I left teaching temporarily to go to law school was because two of my students had been sexually assaulted by their supervisors at work. These young girls had no idea what to do and what their rights were in this type of situation. In addition, I have become increasingly disturbed by the number of employers that violate child labor laws and the lack of interest in most state labor departments to go after employers that are violating state labor laws. This portion of the website will provide you with a solid understanding of your rights in the workplace. However, in addition to this website I would highly suggest that you familiarize yourself with your state’s labor department website  http://www.dol.gov/whd/contacts/state_of.htm and the United States Department of Labor’s website at www.dol.gov.

Getting A Job –

The Hiring Process Applications and Interviews –

The law establishes that employers cannot discriminate in the hiring of their workers. If you feel that you have been discriminated against in the hiring process you can file a complaint with the Equal Employment Opportunity Commission, which is part of the Federal government. Employers should not discriminate in the application process. All applicants should have an equal opportunity to apply. For example, if an applicant has difficulty reading the applicant should be provided with the information orally or on tape. In an interview or on an application the employer should not be asking you information that might be related to protected class status. Federal law has established certain classes of people or characteristics of people that might be used to discriminate. The protected classes are; race, sex, religion, national origin, age, and disability. If in an interview or on an application, the person or business hiring is asking directly or indirectly for information related to protected class they may be using it for discriminatory purposes. The Americans with Disabilities Act prohibits asking candidates about medical conditions prior to offering the candidate a job. However, after the job has been offered the employer may require a physical examination or some type of medical testing.

References and Background Checks –

When you apply for a job the employer will typically ask for information about your prior work history and background. Employers will typically want references from past employers or people who can make statements about your ability to be a good employee. If a former employer makes false negative statements about you it is defamation. However, many states are beginning to pass immunity laws that forbid former employees from suing their former employer because they gave a negative reference. Check your state to see if it has enacted any type of reference letter immunity statute. Many employers will also conduct a background investigation. A typical background investigation might include any or all of the following: contacting your references, checking your past employment record if you have had other jobs, checking your driving record, credit record, or criminal record checks. Because there have been many problems and errors in peoples’ credit reports the U.S. Congress passed the Fair Credit Reporting Act(FCRA). This law establishes some procedures that employers who intend to use a credit report in the hiring process must follow. First, the employer must get the prospective employee’s permission to get a consumer credit report. Second, if they decide not to hire a prospective employee because of what was found in the consumer credit report the employer must provide the prospective employee with a document that informs the person that they are not being hired because of information in their credit record, a copy of the consumer credit record, and information that explains their rights under the FCRA.

Testing and Examinations-

When you interview for a job there are certain tests that an employer can ask you to take. An important thing to remember is that most of these tests must be done AFTER you have been offered the job. The law mandates that these tests be done AFTER you have been offered the job because if they were done early in the interview/application process it would be more likely for employers to discriminate against applicants. It is permissible in most states for employers to request that candidates who have been offered a job be asked to take a drug test. In addition, employers may use random drug testing with employees. In many situations when a test comes back positive the employee will be allowed to have a second test to confirm the results. Check with your state to determine the process for drug testing in your state. Under the Americans with Disabilities Act, companies may not require a medical examination until there has been a conditional offer of employment. This means that the job is yours as long as you pass the medical examination. These medical examinations are not limited and can investigate the physical as well as the psychological health of the person. Employers can also ask you to take other tests that might test your physical ability to perform the job or they might test specific job skills like your math ability. An important thing to remember, if you are asked to take any kind of test is to remember that no testing should identify or discriminate based on the protected classes mentioned earlier. In addition, if you have a disability you may ask for any appropriate testing accommodations but the employer has a right to make you document your disability. This means you would need to have a doctor verify for that you have a disability.

What Kind of Employee Are You? –

Most people in their teens and early twenties are usually “at will” employees. This means that the employer can terminate you whenever they want to fire you. Most union jobs and salaried jobs have specific steps included in the employment contract that must be followed before an employee can be fired. There are a large number of employers that hire people your age who try to classify their employees as independent contractors. One of the reasons they do this is because it allows them to avoid paying for workers compensation insurance for that employee. Therefore if the employee gets injured they just say they don’t need you to come back. This is one of the greatest areas of abuse toward young workers. Typically, you will not be considered an independent contractor unless you control most of the decisions regarding the work you perform such as; when the work is done, if you provide your own materials and tools, how long the job takes, and how and when the person will pay you. I will discuss workplace injuries and workers compensation in greater detail later in the workplace injury section.

Which Law Applies? –

There are many laws and legal precedents that impact on the workplace. There are Federal laws that deal with discrimination, and minimum wage. There are state laws and cases that cover discrimination, wages, working conditions, and many other issues in the workplace. Because there are so many agencies within the state governments and Federal government passing laws and making workplace rulings, it is difficult to keep up with all of the changes. That is why the information in this portion of the website will give a good basic understanding of the basic employment/labor law areas so you can ask good questions and navigate the U.S. Department of Labor and your state Labor/Employment division’s website.

Pay and Benefits – Wages –

The Federal Government through the Fair Labor Standards Act(FLSA) has established the minimum wage at $7.25 an hour. Even if you are working in a situation where you are paid for every lawn you cut or for every head you shampoo at the salon, your average hourly wage can’t be below $7.25 an hour. Some states have established minimum wages higher than the Federal minimum wage. The FLSA also allows employers to pay employees under age 20 a lower wage of at least $4.25 an hour for the first 90 calendar days that they are an employee. You can check your state’s minimum wage law at this U.S. Department of Labor site.

Overtime –

The FLSA establishes that for every hour an employee works beyond 40 hours in a week the employee must receive 1 ½ times their hourly rate.

Tips –

If you are a tipped employee the employer can pay you a Federal minimum wage of $2.13 an hour. However, if your tips and the $2.13 don’t add up to an average of $7.25 an hour(Federal minimum wage) then the employer must make up the difference so the employee is receiving at least the minimum wage of $7.25 an hour. Also if you are a tipped employee the employer will ask you to declare how much you make in tips. This is done because the employer must pay taxes on the tips. If you under report your tips the employer will have to take additional deductions from your pay to meet the Internal Revenue Services tip reporting rules. There is a wonderful document at the Department of Labor that explains tips and the issues that can arise with tips. http://www.dol.gov/whd/regs/compliance/whdfs15.pdf

Hours –

Many states have placed limitations on the number of hours that students under the age of 18 may work while they are in school. In some states the number of hours is a set number like 20 hours while in other states like Michigan it is a combination of the number of hours a student is in school and the number of hours a student may work. In addition, in some states there is a limit on how late a minor can work on school days and weekends. Remember that if your employer is asking or making you work too many hours they are breaking the law and you should report the employer to your state department of labor.

Benefits –

Employers are not required to provide benefits like paid vacation, paid sick days, health insurance, vision insurance, pensions, or any other type of benefits. There are a few employers that offer benefits like tuition assistance or health coverage, so shop for jobs carefully. One of the typical benefits that you will find in the types of jobs 15 – 22 year olds usually work is some type of discount on the products or service provided by the employer. Many teens that work in the food industry receive discounts on food at the restaurant where they work. Clothing stores often give their employees a discount on clothes. I must give an important warning here. DON’T STEAL OR DEFRAUD YOUR EMPLOYER. Yes, It is quite common for young workers to give their friends, family, teachers, and anyone else they might like or are trying to impress FREE or DISCOUNTED goods and/or services. Please don’t do this. First, It is a criminal offense. You are stealing from your employer. Second, It will most likely result in you losing your job. Third, You will most likely lose your job and be unable to use that employer as a reference when asked for your work history. Fourth, Your employer will most likely make you pay for all of the goods or services that you took or gave away. When you do get a job with a pension, there are two primary types of pensions. The first kind is a defined benefit plan. In a defined benefit plan the employee is guaranteed certain benefits at retirement. In many cases the benefits are based on the employee’s years of service with a company. The second kind of plan is a defined contribution pension plan. These plans are getting much more common because they involve the employer and in some plans the employee placing money in specific investment accounts. Whatever money is in the account when the employee retires will be their pension. There are many unique aspects to employment benefit plans so if your job includes benefits read the information about your benefits carefully.

Deductions From Your Wages –

The FLSA does allow an employer to deduct the costs of uniforms and cleaning or maintenance of uniforms from an employees wages, but the deductions must not put the employee below the minimum wage. For example, Sally makes $7.75 an hour. If she works 20 hours this week she would get $7.75 x 20 = $155.00. If the employer deducts $35.00 dollars for uniforms, she would get $120.00. $120.00/20 hours = $6.00 per hour. $6.00 is below the minimum wage so the employer is in violation of the FLSA so the employer could not make that large a deduction. Employers can also make deductions for theft or loss but the deductions cannot lower the employees hourly wage below minimum wage. Some states don’t allow employers to make deductions for loss or theft without the consent of the employee. Check with your state department of labor for your state deduction rules. An employer may not avoid these requirements by making the employee reimburse the employer in cash instead of deducting it from the employee’s wages. For example, an employer can’t make an employee give the employer $10.00 cash because their cash drawer was $10.00 short. The employer would only be allowed to deduct it from the employee’s wages but only if it didn’t reduce the employee’s wages below the minimum wage.

Training –

If your employer makes you attend training the training time must be counted as working time and you should be paid unless the training meets four requirements.

a. It takes place outside your normal working hours.

b. Attendance is voluntary.

c. The training is not directly related to your job.

d. You aren’t doing any productive work for your employer during the training.

These requirements have been established by the U.S. Department of Labor at C.F.R. 785.27

On the Job Breaks –

The FLSA doesn’t include provisions for break time, but many states have established that minors are entitled to some break time. The Federal regulations state that rest periods between 5 minutes and 20 minutes should be included in the employees work time and the employee should be paid during these time periods. The Federal regulations also state that there is no need to pay an employee during meal periods of 30 minutes or more. An employee is not relieved if they are required to perform any type of work duties during the meal time. For example, if you are in the break room having lunch and you are still expected to come wait on customers if it gets busy, you are NOT on break and should be paid for this break time because you are still being asked to work.

Health, Safety, and Injuries in the Workplace –

There are many teenagers injured in the workplace every week in our country. Sadly, very few of you know your rights in the workplace when it comes to workplace injuries. This section of the website is designed to give insight into your rights in the workplace if you are injured. There are two primary areas that are included in this section of the website; the Occupational Safety and Health Administration and Workers Compensation. The Occupational and Safety Administration www.osha.gov is the agency at the Federal government that establishes safety standards for the workplace. OSHA has some resources for teen workers. https://www.osha.gov/Publications/OSHA-esa-bookmark.pdf   For example, OSHA has established noise guidelines so if a worker is working in a noisy workplace there are hearing protection requirements. At the teen worker portion of OSHA’s website they specifically mention the loud background noise that workers in the drive-thru often get through their headsets. The Fair Labor Standards Act establishes that people under 18 are not allowed to operate, set up, adjust, clean, oil, repair powerful-driven meat slicers, grinders, choppers, cutters, bakery mixers or any other bakery machinery. There is an excellent page at the OSHA website with links to the individual states because most states have their own safety workplace safety standards. http://youthrules.dol.gov/states.htm OSHA has Young Worker Coordinators in each OSHA region of the country to assist with young worker issues.

The second area that needs to be addressed is workers compensation. Most states have established systems that insure that workers who are injured in the workplace are protected. Most states’ workers compensation systems provide injured employees lost wages while they are injured and can’t work as well as reimbursement or coverage of medical expenses caused and related to the injury. I often find it interesting that of my students who are working usually only about 4% have had our state’s workers compensation system explained to them. Recently, I had a student who works as a hostess who fell in the kitchen at the restaurant where she works and a manager gave her $60.00 to get her dress cleaned and to forget the whole incident. To receive worker’s compensation a worker usually needs to prove 5 things:

1. The injured worker must be an employee of the employer. Be careful here because a lot of employers will try to argue that the employee was an independent contractor and not an employee of their business.

2. The employee must sustain a personal injury or suffer from an occupational disease.

3. The injury causing event must have occurred while on the job doing tasks related to the employee’s job. 4. The employee must show that they are disabled and can’t work.

5. There must be a loss in wages.

The crucial thing to remember in any worker’s compensation situation is to contact your state worker’s compensation agency. The International Association of Industrial Accident Boards and Commissions maintains a database of workers compensation agencies for each state.

Harassment and Discrimination –

One of the legal problems that occurs quite frequently in the workplace with teenage females is sexual harassment. Workers are protected from sexual harassment in the workplace. The Federal government has viewed sexual harassment as a form of discrimination. Because sexual harassment is viewed as a form of discrimination it is a violation of Title VII of the Civil Rights Act of 1964. Title VII applies to any employer that has more than 15 employees. If you work for a small business that doesn’t have the required 15 employees you will want to check with your state because most states have enacted laws that prohibit discrimination and harassment in the workplace. The Federal government has a wonderful website at the Equal Employment Opportunity Commission (E.E.O.C.)website with lots of helpful information about workplace harassment and discrimination. www.eeoc.gov Sexual harassment can occur in many different ways. It might be a man or woman doing the harassing and the victim is not always of the opposite gender. The harasser might be a co-worker, supervisor, owner of the company, or a customer. Whomever the harasser is, please take action. No job is worth being subjected to sexual harassment. In my time teaching I have had two female students raped by supervisors at work and in both situations the behavior began with unwanted sexual statements targeted toward the victim. In one of the cases it was a large national corporation that knew the supervisor had victimized young girls at prior stores. Each time he did it, the chain would just transfer him to another store. In addition, a person can report sexual harassment even if they are not the target of the harassment. If you are observing someone else who is being victimized by a sexual harasser, you can report the harassment. The E.E.O.C. defines sexual harassment as: “Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature..when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment, (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (3) such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.” 29 C.F.R. 1604.11(a). There are typically two ways that sexual harassment in the workplace has been classified. First there is sexual harassment that directly affects some aspect of the job. For example, a supervisor promises a promotion to a worker if the employee will have sex with the supervisor. The second type of harassment is hostile environment harassment. In a hostile environment harassment situation the harassing behavior might be sexual jokes, staring, requests for sexual favors, showing pornographic pictures, physical contact like touching, and sexual assault. The first step in any harassment action is to report the harassment to the appropriate supervisor. If the harasser is the supervisor or top person at the business and you feel there is really no way to stop the harassment, report it to the E.E.O.C or your state labor department. The general elements that a victim of harassment needs to show are: 1. The victim was harassed and the harassment was based on a protected class characteristic like race or gender. 2. The harassment caused them to suffer some employment action like firing, diminished hours, or created a hostile environment. 3. The harassment was unwelcome which means that the victim didn’t consent to the conduct. 4. The victim can prove the employer didn’t address the harassment.

Uniforms –

Many employers will require that employees wear some type of uniform. As I stated briefly in the example in the employee wage section, the employer may deduct the cost of the uniform from the employees pay, but any deductions must not put the employees pay under the minimum wage. If the uniform is elaborate and needs special cleaning the employer must pay for that cleaning.

Firing and Termination Non-Union –

Most of the jobs that people between the ages of 15 – 22 have are positions where the workers are considered “at will” employees. This means that the employer can fire the employee whenever they want to fire the person. The fired employee has a right to any remaining wages they are owed. The employer must usually pay the wages at the next pay date. Union – If you are working under a union contract, the contract will usually describe what procedures must be followed before an employee can be fired.